Lawsuit challenges NCAA over image control

One of the plaintiffs of the suit is former University of Cincinnati great Oscar Robertson.
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Enquirer reporter Bill Koch examines how Division I student-athletes are compensated for their service to regional schools, the growing sentiment for additional stipends and their possible ramifications by gathering input from the largest stakeholders: administrators, coaches and players.

Every summer, University of Cincinnati basketball coach Mick Cronin gets a call from Adidas to find out which UC players' numbers it should put on the Bearcat jerseys it will sell during the next school year.

It's part of the arrangement in which UC receives $1.05 million in equipment and apparel allowance for the Bearcats' teams plus $525,000 in cash under a contract that runs through June 2015. But the athletes whose numbers are on the jerseys sold to fans get nothing.

NCAA rules prevent the names of student-athletes on team jerseys, but it's clear when you see a UC basketball jersey in the window of a sporting goods store with the number 23 on it that it's All-American Sean Kilpatrick's.

"I think there's something inherently wrong with somebody selling your likeness or your jersey," Cronin said. "Although it doesn't have your name on the back, it has your number and you're getting no benefit. You're gaining none of the profit. It would be hard for anybody to argue that there's not something inherently wrong with that."

But the NCAA has been making that argument for years and is about to go to court to defend itself in a class-action antitrust lawsuit filed in 2009by Ed O'Bannon, who played basketball at UCLA from 1991 to 1995. The suit acknowledges the NCAA's right to market its players but contends that it cannot maintain that marketing control forever without compensating the player.

At issue is to what extent the NCAA can use the name, likeness and image of student-athletes.

One of the plaintiffs is former UC great Oscar Robertson. The trial is scheduled to begin June 9 in Oakland. Robertson is on the witness list, but that doesn't necessarily mean he will be called to testify.

Robertson declined to discuss his role in the suit, referring questions to his Cincinnati attorney, Terry Coates, who said he couldn't discuss the suit or Robertson's involvement in it because it's about to go to trial.

According to a Yahoo! Sports story on Jan. 26, 2011, Robertson said fans had started asking him to sign trading cards that featured a picture of him as a UC varsity player from 1957 to 1960 without him having agreed to such an arrangement.

"The arrogance of the NCAA to say, 'We have the right to do this' … is what troubles me the most," Robertson was quoted as saying in the story. "The University of Cincinnati gets a fee each time my picture is used on a card. I don't. When I played there, there was nothing like this ever agreed to.

"I'm really shocked that the university is involved and never said, 'You know, Oscar, they're using your likeness.' Instead they just made the deal without asking or even telling anyone."

Cronin sympathizes with the players.

"The question is how do you preserve an amateur model?" Cronin said. "You need to promote your team and sell jerseys. And then it's not an easy fix because then you have other players on your team who want to know, 'Why aren't they selling my jersey?' A guy like Sean Kilpatrick should get a percentage of every jersey sold upon graduation. That would preserve your amateur status.

"But I don't see how you can say it's not wrong if people are selling your likeness and you're getting nothing from it."

Local athletic directors say compensating student-athletes for jersey sales or allowing them to do paid endorsements would create a slippery slope that could have far-reaching negative consequences, including making it more difficult to coach players who want to make a name for themselves so they can become more marketable.

But that doesn't seem to be an issue in professional sports, where top athletes make millions from endorsements.

"I just don't think the industry needs that in college athletics," said Miami athletic director David Sayler. "Kids should want to come to school and be here and be part of that school. I think the NCAA and others, we should stop trying to sell their particular jersey. We should just sell a Miami jersey and not an individual kid's."

Allowing student-athletes to do paid endorsements would raise all sorts of questions that are not easily answered, said UC athletic director Mike Bohn.

"I think we really need to understand how that works, who structured it, who put it together, what kind of accountability measures do we associate with how that's recorded," Bohn said. "If we're going to allow Sean to do it, is he going to do that in his hometown, in addition to here? Is it a national campaign? There's so many unknowns about it. But I believe if you start allowing individuals to take advantage of opportunities that are not consistent with the entire national landscape that it creates additional challenges.

"If I'm recruiting Sean Kilpatrick at the University of Cincinnati, but XYZ University says, hey, we've already got a national campaign tied to a Fortune 500 company and you're going to be a national spokesman for them, how does that become a true representation of the playing field?"

According to Ohio State athletic director Gene Smith, the institution is entitled to the marketing rights to student-athletes because the schools provide the platforms and coaching that make them marketable.

"The Shoe is our football stadium," Smith said. "One hundred and six thousand people attend our games, the television contracts, those things that provide an opportunity for that persona to emerge. There are very few athletes, particularly in football, that walk in and instantly have that market value. There's an investment made. Basketball is a little different beast. I'm not a big proponent of that. I'm a proponent of finding other ways to get financial resources to the student-athletes."

As long as college athletics operate under the current NCAA amateur model, Cronin said, the schools will always look for ways to raise money to operate and promote sports without the student-athlete receiving a financial cut beyond his or her athletic scholarship.

"I do think (NCAA president) Mark Emmert is trying every possibility to eliminate the athlete always getting the short end of the stick," Cronin said. "But it's a fact that as long as we are under the amateur model you're not always going to make the athlete whole. There's always going to be some form of amateurism, meaning everyone else is getting the money but the amateur. We can (minimize) that as much as we can, and that's where we're headed."

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